Most government is unconstitutional. Nick Sibilla writes:
The U.S. Supreme Court made it much easier for federal agencies to create new crimes and prosecute them, rejecting a constitutional challenge based on the separation of powers. In an unusual split that saw Justice Samuel Alito join the Supreme Court’s liberal wing, Gundy v. United States upheld the Sex Offender Registration and Notification Act (SORNA), a “comprehensive national system” Congress established in 2006 to register sex offenders, which gave the Attorney General vast powers of rulemaking and enforcement. […]
Thanks to SORNA’s broad transfer of power, the Justice Department previously acknowledged that the Attorney General “could require some but not all to register (or comply with some but not all of the registration requirements); he could do nothing at all or wait several years before acting; or he could change his mind at any given time or over the course of different administrations.” Moreover, SORNA “does not require the Attorney General to act within a certain time frame or by a date certain; it does not require him to act at all.”
Yet under the Constitution, “all legislative powers” are “vested” in Congress, while Congress cannot “delegate” or outsource those powers to another branch of government. As anyone who’s seen Schoolhouse Rock may recall, the federal government is a system of checks-and-balances: the legislature (Congress) makes the law, the executive (President) enforces the law, and the judiciary (Supreme Court) interprets the law. […]
As [Justice Neil] Gorsuch argued, letting the Attorney General “write the criminal laws he is charged with enforcing” would “mark the end of any meaningful enforcement of our separation of powers and invite the tyranny of the majority that follows when lawmaking and law enforcement responsibilities are united in the same hands.”
“If the separation of powers means anything, it must mean that Congress cannot give the executive branch a blank check to write a code of conduct governing private conduct for a half-million people,” he added.
Justice Elena Kagan didn’t agree. […]
Kagan called the delegation at stake in Gundy “distinctly small-bore.” “Indeed, if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs,” Kagan quipped.
Of course, for many Americans that would be a feature, not a bug, of a reinvigorated nondelegation doctrine.
[Nick Sibilla, “Gorsuch Slams the Supreme Court for Turning a Blind Eye to Overcriminalization,” Forbes, June 21]
